Friday, 31 March 2017

The White Paper on the Great Repeal Bill: Invasion of the Parliamentary Control Snatchers

Professor Steve Peers

Yesterday’s White
Paper for the forthcoming Great Repeal Bill outlines the key elements of
the domestic law aspects of the process of the UK leaving the EU. It indicates
broadly how the future proposal for a Bill will do two main things: (a) convert
existing EU law applied in the UK to UK law including, in some cases, law of the
devolved bodies in Scotland, Wales and Northern Ireland); and (b) provide for a
process of amending ex-EU law in future.

While the White Paper has thought
some issues through in detail, there are some key points on which it is either
vague or unconvincing (or both). In particular, it contains no real detail or
substantiated argument on the most important issue: the power of the executive
to amend laws without an Act of Parliament.

Converting EU law

The White Paper confirms that the
UK will continue to apply EU law until Brexit Day – which will be March 29,
2019, unless (a) the EU/UK withdrawal agreement specifies otherwise, or (b) the
EU and UK agree to extend this date, or (c) the UK rescinds its notification to
withdraw from the EU (if that is legally possible). It also confirms the
intention to remove the European
Communities Act – the main Act of Parliament that gives effect to EU
membership in UK law – as of that date.

But it seeks to retain in force
the EU rules which apply in the UK as of that date, subject to amendments (as
discussed below). The EU rules in
question are directly-applicable Regulations and EU Treaty provisions, as well
as Directives which were already transposed into UK law by using the European Communities Act. Also, the
Treaties will remain relevant for the interpretation of ex-EU legislation which
was initially based on them (para 2.10).

What about the EU courts? Here the White Paper draws a
distinction. On the one hand, post-Brexit laws will not be subject to the
jurisdiction of the EU Court, and the UK’s courts will not be obliged to take
ECJ rulings into account (presumably they could choose to do so, however). On the other hand, ex-EU laws will still
have to be interpreted by reference to pre-Brexit case law of the EU courts, to
ensure certainty. There’s no reference to post-Brexit case law, but again presumably
the UK courts could choose to consider it.

The latter rule will not be
absolute, however: pre-Brexit ECJ case law will have the same binding effect as
UK Supreme Court judgments, and so the Supreme Court could overrule those
judgments in the same limited circumstances in which it can (and rarely does)
overrule itself. It will of course be possible for Parliament to overturn ECJ
case law by amending the legislation, and the government hints that it might
want to consider clarifying the circumstances in which the Supreme Court could
overturn prior ECJ rulings.

A similar distinction arises as
regards the supremacy of EU law: the
EU court rule that EU law takes precedence over any conflicting national law,
so the latter has to be disapplied by national courts in the event of any
conflict. The supremacy rule will not apply to post-Brexit UK legislation, but
it will still apply to pre-Brexit UK laws
that conflict with ex-EU law.

Despite the general conversion of
EU law, the White Paper insists on an exception for the EU Charter of Rights. In
that case, the ex-EU legislation will be interpreted after Brexit by the ‘rights
underlying’ the Charter (ie the ECHR and other international treaties which the
UK has signed), rather than the Charter itself.

Amending ex-EU law

Obviously the body of ‘ex-EU’ law
will not remain unchanged forever. The White Paper discusses the process by which
it can be changed in future. There are two key issues here. First, will any changes
be the responsibility of the Westminster Parliament or government, or the
parliaments and executives of the devolved bodies in Scotland, Wales and
Northern Ireland? Secondly, within Westminster, what changes will be subject to
Acts of Parliament, and what will be subject to delegated powers conferred upon
the executive?

On the first point, the White
Paper is vague about exactly what powers will be exercised by the devolved
administrations, and this is likely to be a highly contested issue in
practice.

On the second point, the
distinction between Acts of Parliament and executive powers is important
because an Act of Parliament allows for extensive public discussion and
parliamentary scrutiny, whereas an act of the executive (usually in the form of
'Statutory Instruments') is subject to limited public or parliamentary
involvement. For instance, there is far less time for discussion, and no
prospect of tabling amendments.

The White Paper starts by
mentioning some possible delegated powers for the Great Repeal Bill that will surely
be uncontroversial. For instance, it refers to the references in ex-EU law to
'EU law', powers of the EU institutions, or information sharing with the EU. Since
most of these references will be redundant (except possibly as regards continued
sharing of police information, as the White Paper notes), there are limited
policy choices to be made when replacing them. So there can be little
objection in principle to the executive using such powers.

However, there is a further
category of changes to EU law which will be more substantive. The White Paper
gives a non-exhaustive list of cases where the government thinks it should have
delegated powers: where a policy might change in light of the Brexit talks with
the EU; where a policy changes as a direct consequence of leaving the EU; and
where the level of detail is 'not appropriate' for an Act of Parliament.

More generally, the government
argues that these powers must be widely defined and must apply not only to
ex-EU law converted into EU law, but also Acts of Parliament linked to EU
membership. The power for the executive to amend Acts of Parliament is
controversial, and such clauses are widely known as 'Henry VIII clauses'.
Although the House of Lords Constitution Committee had previously
argued that there should be extra powers of parliamentary scrutiny in this
context, the government implicitly rejects this view.

Comments

The overall objective of ensuring
legal continuity by retaining pre-Brexit EU law in force is logical, and the
White Paper has thought many of the details through. It makes sense to ensure
that legal continuity as much as possible by creating a distinct body of ex-EU
law, where a form of the principle of supremacy still applies and ECJ judgments
remain binding, subject to the rare case that the UK Supreme Court might want
to overturn.

However, some of the detail has
not been considered: what about future ECJ case law? What about cases concerning
EU law in the UK pending in the UK courts or the EU courts on Brexit Day? What
if a condition of ensuring market access to the EU after Brexit is to take relevant
EU court case law ‘into account’? (Note that this falls short of making those
judgments binding, and is even an
even longer way from retaining the supremacy
of EU law over national law). What about the domestic legal impact of any
alternative court or dispute settlement system that might rule on UK/EU
disputes after Brexit?

The hostility to the EU Charter
forms an exception to the rule that prior EU law continues to apply, and raises
much legal uncertainty. Does it also mean that ECJ rulings referring to the
Charter should be ignored, at least to the extent that they refer to the
Charter? Since many such rulings refer to other EU laws and interpret them in
light of the Charter, there will in effect be an odd requirement to keep following
part of a ruling but not all of it. But this will be like trying to remove an
egg from an omelette, because the judicial reasoning on the Charter and the EU
legislation is intertwined.

To some extent, this effect will
be limited by the requirement to interpret the ex-EU law in light of the ‘underlying
rights’ instead of the Charter. But what does this mean in light of the
government’s intention to repeal the Human
Rights Act, and replace it with a British Bill of Rights? What if the ECJ’s
interpretation of the Charter was arguably more ambitious in a particular case
than the relevant ‘underlying rights’ in the Charter? What if the relevant ‘underlying
rights’ are set out in a human rights treaty which the UK has not ratified, or
not made part of its domestic law? And there is no mention of the pre-Charter
case law of the ECJ on human rights as ‘general principles of law’; what
happens then?

Moving on to the amendment
process, the White Paper’s initial examples of very technical changes to ex-EU
laws that the government might wish to make are frankly misleading. For the
White Paper then goes on to refer to a non-exhaustive list of broad
discretionary powers which the government wants to make changes to the statute
book in light of talks with the EU, to make consequential changes to policies
or to fill in details of laws.

As drafted, these powers are
potentially nearly limitless. They could, for instance, be used to adopt every
detail of future policies on agriculture, fisheries, trade with non-EU
countries or extradition to the EU without full parliamentary scrutiny or
public discussion, because each of these are areas where the new laws could be
regarded as changes consequential to leaving the EU.

So how should Parliament limit
government powers? It will be hard to avoid conferring some substantive delegated powers on the government, as the time
frame to implement a Brexit agreement with the EU (or the absence of one)
before the likely Brexit Day of March 29, 2019 might be tight. On the other hand, there might be several months to
spare, or there might be a transitional agreement keeping EU law in force for
some time, so giving Parliament more time to act.

The best way forward is to rule
certain issues off-limits entirely, particularly issues where EU law provides
for essentially domestic legal harmonisation: for instance employment law, environmental
law, consumer law, discrimination law. In those areas there is generally no
reason why the law necessarily has to change if the UK leaves the EU, because
the relevant laws are not usually about cross-border matters. (There are
exceptions, like European Works Councils or carbon trading laws).

In other substantive areas, where
there is a direct link with leaving the EU, Parliament should be given a right
to rule on whether the conditions for conferring delegated powers on the
government are met. Effectively it could decide whether the trigger for those
powers had to be pulled due to lack of time or not. (Thanks to Professor Tammy Hervey
for a version of this idea). There could be particular limits on the power of
the executive to amend Acts of Parliament.

Also, the government could be
pressed to make more effort to table Acts of Parliament well in advance of
Brexit Day on the planned changes to some key areas, for instance agriculture
and fisheries, to enable full parliamentary scrutiny. In particular, the
planned customs bill could include rules setting out the domestic legal
framework for UK’s post-Brexit international trade law (more on that specific
issue another time).

Finally, on the issue of devolved
assemblies, it is striking that the Brexit Minister’s foreword to the White
Paper talks generally about a “significant increase in the decision-making
power” of the devolved bodies, but the actual White Paper then does not give
any detail of this. On the other hand it does
go into some detail about the powers which can’t
be conferred upon devolved assemblies, due to an intention to ensure a UK-wide
single market.

Maybe we need a short, simple phrase
to refer to the promise of devolved powers which is not then substantiated by
any detail. Might I suggest…“the Vow”.

3 comments:

Dear Steve,Thank you for the interesting article.As a worried EU citizen, I would appreciate if you can answer two questions:1. When mentioned EU citezens and their family members - does it also include a non EU family member under the definition of a family member?2. Do you think that retaining the rights of EU citizens are enough? I think that the defenition of a permanent residency should be revised, because as far as I see it, we will be in a 'jail' where we cannot leave the UK for more than 2 years (for example, studing abroad etc.). It will be so difficult...Thanks,Anne